Smith v. Smith

• Decision Date: 11 March 1911
• Docket Number: 16,878
• Citation: 114 P. 245,84 Kan. 242
• Parties: H. G. SMITH et al., Appellees, v. CHARLES C. SMITH, Appellant
• Court: Kansas Supreme Court

114 P. 245

84 Kan. 242

H. G. SMITH et al., Appellees, v. CHARLES C. SMITH, Appellant

No. 16,878

Supreme Court of Kansas

March 11, 1911

Decided January, 1911.

Appeal from Reno district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. GIFTS--Validity--Presumption--Burden of Proof. The rule with respect to the presumption of validity and the burden of proof in cases of wills and testaments (Ginter v. Ginter, 79 Kan. 721, 101 P. 634) does not apply to cases of gifts or contracts inter vivos.

2. GIFTS--Undue Influence--Presumption--Burden of Proof. In the case of a gift or voluntary conveyance inter vivos, where the donor is a widow enfeebled in mind by disease or old age, and the person benefited is her son, with whom she makes her home, equity raises the presumption that the gift or voluntary conveyance was brought about by undue influence, and the burden is upon the party benefited to show affirmatively that the transaction was fairly conducted as if between strangers.

F. F Prigg, and C. M. Williams, for the appellant.

F. P. Hettinger, and F. L. Martin, for the appellees.

OPINION

PORTER, J.:

Adaline Smith died in 1908, intestate, owning an undivided half interest in a farm in Reno county, consisting of 160 acres. The parties to the appeal are her heirs at law. A few months before her death she executed and delivered to the appellant, who is her son, deeds purporting to convey her interest in the land. The appellees sued the appellant to cancel the deeds and asked that the land be partitioned. Henry O. Smith originally owned the land and died intestate, in 1899, leaving his widow, Adaline Smith, and the parties to this action his only heirs at law. Soon after his death the widow and children entered into the following written agreement:

"We, the undersigned heirs of the estate of H. O. Smith, deceased, do hereby agree that Mrs. Adaline Smith shall keep all of the home place for life; then it to be sold and divided equally among the heirs."

In the petition it was alleged that at the same time there was a verbal agreement between all the parties that the appellant should reside with his mother on the farm, cultivate the same, and in consideration of the rents thereof should clothe and care for his mother the remainder of her lifetime, and should pay all taxes against the land. The petition then alleged that a few months before his mother's death the appellant, in disregard of his written agreement, and by means of importunities, threats, misrepresentations and undue influence, prevailed upon her to execute deeds conveying the title of the land to him; that at the time the deeds were executed Adaline Smith was incapable of making a valid conveyance, by reason of being old, sick and of feeble mind; that the appellant paid no consideration whatever for the conveyances; and that they were made without the knowledge or consent of the appellees.

The answer specifically denied the averments of fraud and undue influence in procuring the execution of the deeds or that the grantor was incapable of making valid conveyances, and as a further defense alleged that the written agreement entered into between the heirs of Henry O. Smith had no reference to the undivided portion of the homestead and was made without consideration, and therefore not binding upon the appellant, and that since its execution the written agreement had been altered by interlining the word "equally" in the last line thereof. The court found generally for the appellees and against the appellant.

The first contention is that there was no competent evidence showing the incapacity of Adaline Smith to make the conveyances. It is said that there was only one witness, in addition to the appellees themselves, who testified that she was mentally incapacitated from understanding the nature of her action in executing the conveyances. The objection that most of the witnesses were interested parties goes only to their credibility. Besides expressing their opinions, the witnesses testified to the facts upon which their opinions were based and which tended to show that Mrs. Smith, who at the time of her death was seventy-nine years of age and had been in poor health about two years, was confined to her bed most of that time, and was mentally incapacitated by feebleness and old age from making a valid conveyance. Although the witnesses were nonexperts, they were competent to testify respecting the mental capacity of Adaline Smith, and the weight of their testimony was a question for the jury. (Baughman v. Baughman, 32 Kan. 538, 4 P. 1003; Howard v. Carter, 71 Kan. 85, 91, 92, 80 P. 61.) There was a sharp conflict in the evidence on this point, but there was substantial and competent evidence to support the findings of the trial court. (Hudson v. Hughes, 56 Kan. 152; Medill v. Snyder, 61 Kan. 15, 20, 58 P. 962.)

The main contention is that there was no testimony to sustain the issue as to undue influence; and in this connection it is insisted that there was a presumption in favor of the conveyances having been executed fairly and that the burden of showing the contrary rested upon the appellees. In support of this claim the appellant relies chiefly upon Ginter v Ginter, 79 Kan. 721, 101 P. 634. The instrument there attacked was a will; this is a conveyance by deed, a gift between living persons. The appellant admits that he paid nothing for the conveyances except the nominal consideration of one dollar. There was a confidential and fiduciary relation existing between him and his mother. She was old, and feeble in health. She lived at his home, under an agreement by which he was to care for her in her...